Unconstitutional Asymmetry or a Rational Basis for

Maine Law Review Maine Law Review

Volume 60 Number 1 Article 7

January 2008

Unconstitutional Asymmetry or a Rational Basis for Unconstitutional Asymmetry or a Rational Basis for

Inconsistency? The Admissibility of Medical Malpractice Inconsistency? The Admissibility of Medical Malpractice

Prelitigation Screening Panel Findings Before and After Smith v. Prelitigation Screening Panel Findings Before and After Smith v.

Hawthorne I and II Hawthorne I and II

Matthew Asnault Morris University of Maine School of Law

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Recommended Citation Recommended Citation Matthew A. Morris, Unconstitutional Asymmetry or a Rational Basis for Inconsistency? The Admissibility of Medical Malpractice Prelitigation Screening Panel Findings Before and After Smith v. Hawthorne I and II, 60 Me. L. Rev. 205 (2008). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol60/iss1/7

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UNCONSTITUTIONAL ASYMMETRY OR ARATIONAL BASIS FOR INCONSISTENCY? THEADMISSIBILITY OF MEDICAL MALPRACTICEPRELITIGATION SCREENING PANEL FINDINGSBEFORE AND AFTER SMITH v. HAWTHORNE I AND II

Matthew Asnault Morris

I. INTRODUCTIONII. THE MEDICAL MALPRACTICE PRELITIGATION SCREENING PANEL PROCESS IN

MAINEA. Previous Statutory Guidance as to the Admissibility of Screening Panel

FindingsB. Previous Constitutional Challenges to Section 2857: Irish v. Gimbel I

and IIC. Post-Irish I Amendments to Section 2857

III. SMITH V. HAWTHORNE I: THE CONSTITUTIONALITY OF ASYMMETRICADMISSIBILITYA. Factual Background and Procedural HistoryB. Oral Arguments Before the Law Court

1. First Round2. Second Round3. Discussion

C. The DecisionD. What Remains After Smith I

IV. SMITH V. HAWTHORNE II: THE CONSTITUTIONALITY OF PROCEDURAL ASYMMETRYA. Proceedings on Remand to the Superior CourtB. Oral Arguments Before the Law CourtC. The Decision

V. HOW THE LAW COURT SHOULD HAVE DECIDED SMITH V. HAWTHORNE IIVI. HOW THE MAINE LEGISLATURE SHOULD AMEND SECTIONS 2857 AND 2858VII. CONCLUSION

206 MAINE LAW REVIEW [Vol. 60:1

* J.D. Candidate, 2008, University of Maine School of Law. The author would like to thank ProfessorOrlando Delogu for his extremely helpful commentary, guidance, and insight throughout various workingdrafts of this Note. The author would also like to thank his sister Lillian and her husband Stephen Rees(Maine Law ’05) for all of their support.

1. ME. REV. STAT. ANN. tit. 24, § 2857 (West 2000). 2. Smith v. Hawthorne (Smith I), 2006 ME 19, 892 A.2d 433; Smith v. Hawthorne (Smith II), 2007

ME 72, 924 A.2d 1051.3. ME. REV. STAT. ANN. tit. 24, § 2851(1)(A) & (B) (West 2000) (identifying the purpose of

mandatory pre-litigation screening panels); see also Sullivan v. Johnson, 628 A.2d 653, 656 (Me. 1993).4. ME. REV. STAT. ANN. tit. 24, § 2852 (West 2000). 5. Section 2855 specifies that the screening panel shall make the following findings in writing within

30 days of the hearing: A. Whether the acts or omissions complained of constitute a deviation from the applicablestandard of care by the health care practitioner or health care provider charged with thatcare;

UNCONSTITUTIONAL ASYMMETRY OR ARATIONAL BASIS FOR INCONSISTENCY? THEADMISSIBILITY OF MEDICAL MALPRACTICEPRELITIGATION SCREENING PANEL FINDINGSBEFORE AND AFTER SMITH v. HAWTHORNE I AND II

Matthew Asnault Morris*

I. INTRODUCTION

Prelitigation screening panels have been instrumental in streamlining medicalmalpractice litigation in the State of Maine by culling claims from superior courtdockets, encouraging settlements, and providing findings of fact that could proveuseful for a jury if the case proceeds to trial. In enacting one particular provisiongoverning the confidentiality and the admissibility of the screening panel process,1however, the legislature may have sacrificed the constitutional rights of medicalmalpractice claimants in favor of a lighter docket. Two recent cases before the LawCourt, Smith I and II,2 have challenged the constitutionality of Maine’s unique statu-tory approach to the admissibility of screening panel findings at a subsequent trial.

The legislature created a system of mandatory prelitigation screening panels insections 2851 through 2859 of the Maine Health Security Act (MHSA) with theexpress purpose of identifying those “claims of professional negligence which meritcompensation” prior to the commencement of a lawsuit, and “encourag[ing] earlywithdrawal or dismissal of nonmeritorious claims.”3 Sections 2852 through 2854outline the composition of the panel and the mandatory procedures that a claimant mustfollow to commence an action for professional negligence.4 Section 2855 provides thatthis panel shall hear evidence from both the claimant and the doctor accused ofprofessional negligence in order to make three separate findings as to the doctor’sdeviation from the standard of care, causation, and the claimant’s comparativenegligence.5 Although plaintiffs have challenged the constitutionality of the screening

2008] ADMISSIBILITY OF SCREENING PANEL FINDINGS 207

B. Whether the acts or omissions complained of proximately caused the injury complainedof; andC. If negligence on the part of the health care practitioner or health care provider is found,whether any negligence on the part of the patient was equal to or greater than the negligenceon the part of the practitioner or provider.

Id. § 2855 (West 2000 & Supp. 2006). 6. See Irish v. Gimbel (Irish I), 1997 ME 50, ¶¶ 14, 18, 691 A.2d 664, 672-73 (rejecting plaintiff’s

argument that the panel process denies access to the courts and causes unconscionable delay, and holdingthat the screening panel statute “establishes reasonable procedural requirements that do not violate the opencourts provision of the Maine Constitution”); see also Sullivan, 628 A.2d at 656 (upholding theconstitutionality of the legislative intent to encourage the pre-trial resolution of meritorious claims and toencourage the withdrawal of non-meritorious claims).

7. Section 2857(1)(B) provides: B. If the panel findings as to both the questions under section 2855, subsection 1,paragraphs A and B are unanimous and unfavorable to the person accused of professionalnegligence, the findings are admissible in any subsequent court action for professionalnegligence against that person by the claimant based on the same set of facts upon whichthe notice of claim was filed.

ME. REV. STAT. ANN. tit. 24, § 2857(1)(B) (West 2000).8. Section 2857(1)(C) provides:

C. If the panel findings as to any question under section 2855 are unanimous andunfavorable to the claimant, the findings are admissible in any subsequent court action forprofessional negligence against the person accused of professional negligence by theclaimant based on the same set of facts upon which the notice of claim was filed.

Id. § 2857(1)(C).

panel process as outlined in these sections, the Law Court has repeatedly upheld theconstitutionality of the process as a whole and deferred to the legislative purpose topromote pretrial resolution explicated in section 2851.6

Deference to legislative policy, however, has not been sufficient to curtail thevarious constitutional challenges that malpractice claimants have raised against section2857. This section—which addresses the admissibility of unanimous panel findingsat a subsequent trial—has been successfully challenged on various bases, and has beensubsequently amended on numerous occasions in order to strike a balance between theconstitutional rights of malpractice claimants and the legislative intent to generate dis-incentives for the pursuit of non-meritorious claims. The latest successful constitu-tional challenge to section 2857 in Smith I significantly limited the constitutional scopeof these admissibility-oriented disincentives.

Paragraph B of section 2857(1) essentially states that the screening panel’sfindings are admissible against the doctor at a later trial if the panel finds that thedoctor deviated from the applicable standard of care, and this deviation was theproximate cause of the claimant’s injury.7 The rationale behind this rule is clear: if adoctor unanimously loses at the screening panel stage on both the issues of breach ofduty and causation that would be required to prove malpractice at a subsequent trial,the doctor should not be permitted to prevent the admission of all of those findingsunfavorable to his case.

Paragraph C of this statute provides that if the screening panel answers either thequestion of breach of duty or causation unanimously in the doctor’s favor, then the“findings are admissible in any subsequent court action.”8 This language is particularlyproblematic because it refers to the panel findings as to “any question” (i.e. either


9. The same ambiguity does not arise in subsection B because “the findings” clearly refers to “both”of the unanimous panel findings unfavorable to the doctor. Id. § 2857(1)(B).

10. See generally Smith I, 2006 ME 19, 892 A.2d 433. 11. See id. ¶ 5, 892 A.2d at 435. 12. Brief of Appellant at 4, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292).13. Smith I, 2006 ME 19, ¶ 25, 892 A.2d at 439-40. 14. Smith II, 2007 ME 72, 924 A.2d 1051. 15. See id. ¶ 13, 924 A.2d at 1055.

breach of duty or causation), but then states that the findings (rather than the findingrelated to either of those questions) are admissible in a subsequent trial.9 Thisprovision formed the basis of the constitutional challenge in Smith I.10 In the Smiths’case, the superior court interpreted “the findings” to mean only those findings that werefavorable to the doctor at the screening panel stage; therefore, the court allowed Dr.Hawthorne to inform the jury that the panel found no proximate causation, but theSmiths were not permitted to inform the jury that the panel found (1) that Dr.Hawthorne deviated from the standard of care and (2) that there was no comparativenegligence.11

The Smiths argued that section 2857 violated their fundamental right to a jury trialby “requiring that the jury be told a half-truth.”12 The Law Court in Smith I did not goso far as to say that section 2857 is unconstitutional as written, but did hold that theapplication of the statute, which allows admission of only those findings favorable tothe doctor, deprives the jury of the meaningful information required to render a fairverdict, and thus, deprives a malpractice claimant of his right to a jury trial guaranteedby the Maine Constitution.13

Whereas Smith I addressed a malpractice claimant’s constitutional challenge tosection 2857’s substantive asymmetry, Smith II addresses whether the statute gives theparty who prevailed at the panel stage the right to refuse to submit all unanimousfindings.14 In a 4-2 majority opinion authored by Justice Calkins, the Law Court heldthat a doctor who has prevailed at the screening panel stage with respect to either thequestion of breach of duty or causation should be permitted to refuse to submit all ofthe panel’s findings to the jury.15

Both Smith I and II illustrate an urgent need for the Maine Legislature tofundamentally reevaluate the structure, constitutionality, and effectiveness of theadmissibility-oriented statutory disincentives in sections 2857 and 2858 of the MHSA.The Maine Legislature could avoid further constitutional challenges to section 2857without sacrificing its interest in promoting pretrial settlements by amending theMHSA to provide (1) that all screening panel findings—unanimous and non-unanimous alike—shall be admissible at a subsequent trial, and (2) that reasonableattorneys’ fees shall be assessed against the party who unanimously loses at the panelstage, refuses to abandon or settle the claim, and then loses again at a subsequent trial.

Part II of this Note will outline the statutory scheme, legislative history, and caselaw surrounding the screening panel process in Maine. Part III will discuss theconstitutionality of asymmetric admissibility as addressed in Smith I. Part IV willfocus on the evidentiary and constitutional questions surrounding proceduralasymmetry in Smith II. Part V will address how the Law Court should have decidedSmith II. Part VI will consider the various possibilities for legislative amendments to


16. See Randall R. Bovbjerg, Legislation on Medical Malpractice: Further Developments and aPreliminary Report Card, 22 U.C. DAVIS L. REV. 499, 502 (1989) (“For poorly understood reasons, thefrequency of malpractice claims, which had risen moderately through the 1960s, turned sharply upward inthe early 1970s.”); see also P. & S.L. 1975, ch. 73 (stating that the “national crisis . . . developing withregard to the availability and cost of hospital and medical malpractice insurance” has created “anemergency within the meaning of the Constitution of Maine”).

17. See Kathy Kendall, Comment, Latent Medical Errors and Maine’s Statute of Limitations forMedical Malpractice: A Discussion of the Issues, 53 ME. L. REV. 589, 602 (2001); see also THE COMM’NTO REVISE THE LAWS RELATING TO MEDICAL AND HOSPITAL MALPRACTICE INSURANCE, REP. TO THE 108THLEGIS. xvi (Jan. 22, 1977) [hereinafter Pomeroy Report] (reporting that most malpractice premiums inMaine “have at least doubled,” and that “some physicians in high-risk classification” have reported 400%increases in their premiums).

18. See Kendall, supra note 17, at 602.19. P. & S.L. 1975, ch. 73.20. Id. § 1. 21. Pomeroy Report, supra note 17, at i. 22. Id. 23. P.L. 1977, ch. 492, §§ 1-3.24. See Bovbjerg, supra note 16, at 503 (attributing the re-emergence of medical malpractice problems

in the 1980s to the fact that medical providers had “banded together” in order to make coverage moreavailable).

sections 2857 and 2858, and proposes amendments to these sections that are designedto avoid future constitutional challenges and preserve the legislature’s intent togenerate incentives for settlements and the abandonment of non-meritorious claims.

II. THE MEDICAL MALPRACTICE PRELITIGATION SCREENING PANEL PROCESS IN MAINE

A. Previous Statutory Guidance as to the Admissibility of Screening Panel Findings

In the 1970s, the United States was in the midst of a medical malpractice crisis.16

Throughout the country, the number of malpractice claims and the size of jury awardsfor claimants skyrocketed, leading to a dramatic increase in doctors’ insurancepremiums.17 In response to this crisis, the American Medical Association persuadedstate legislatures to change their laws governing malpractice litigation.18 The MaineLegislature responded in 1975 with An Act to Create a Commission to Revise the LawsRelating to Medical and Hospital Malpractice Insurance.19 This commission wascreated in order to “insure the availability of medical and hospital malpracticeinsurance to physicians and hospitals throughout the State and to develop a moreequitable system of relief for malpractice claims.”20 The commission—chaired byJustice Charles A. Pomeroy of the Supreme Judicial Court of Maine—submitted theinformation it collected from various hearings to the legislature in the 1977 PomeroyCommission Report.21 This report proposed several major changes to existing lawgoverning malpractice insurance and the statute of limitations for claims, and alsorecommended a system of voluntary binding arbitration for malpractice claims.22 ThePomeroy Commission’s recommendations were ultimately enacted by the legislatureas the original MHSA.23

In the mid-1980s, the United States experienced another wave of surgingmalpractice awards,24 and Maine responded with a corresponding wave of legislative


25. P.L. 1985, ch. 804, § 12 (effective Jan. 1, 1987). 26. Id. 27. Id. 28. Id.29. Id. 30. Id. 31. Id. Here, section 2854 provides that the claimant shall present the case before the panel and the

person accused of professional negligence shall make a responding presentation. It also specifies that theMaine Rules of Evidence do not apply. Id.

32. Id. 33. Id. 34. Compare P.L. 1985, ch. 804, § 12 with ME. REV. STAT. ANN. tit. 24, §§ 2851- 2856 (West 2000

& Supp. 2006). 35. Compare P.L. 1985, ch. 804, § 12 with ME. REV. STAT. ANN. tit. 24, § 2858 (West 2000).36. ME. REV. STAT. ANN. tit. 24, § 2858 (West 2000). 37. Id. As plaintiff’s counsel Gilbert Greif noted during oral argument in Smith II, section 2858 “no

reform to the MHSA. In 1985, the Maine Legislature enacted An Act Relating toMedical and Legal Professional Liability, which introduced several significant changesto the MHSA with respect to medical malpractice screening panels.25 One of the mostsignificant changes was the adoption of a mandatory prelitigation screening panelprocess in place of the voluntary arbitration outlined in the original MHSA.

Sections 2852 through 2856 of the 1985 Act outlined the basic structure of themandatory screening panel process.26 According to section 2852, the Chief Justice ofthe Superior Court—after receiving a notice of claim—was to select a retired judge ora person with judicial experience to serve as chair of the screening panel.27 Then, thechair of the panel was instructed to choose two to three additional panel members froma list of approved health care practitioners and attorneys.28 The panel was to consist ofone health care attorney and one or two health care practitioners who practice,preferably, in the same field as the allegedly negligent doctor.29 Section 2853governed the claimant’s filing requirements and specified that the screening panelcould be bypassed if both parties agreed to resolve the claim through a lawsuit.30

Section 2854 mandated the basic terms of the hearing before the screening panel,31 andsection 2855 directed the screening panel to make findings, after both sides havepresented their case, on deviation from the applicable standard of care and proximatecausation.32 Section 2856 specified that the panel findings had to be served on bothparties within seven days of the date of the findings.33 These basic parameters of thescreening process, as provided in sections 2852 through 2856, have not been amendedsignificantly since the 1985 Act.34

The 1985 Act also introduced section 2858, which has not once been amended andis identical to the current version of the statute.35 Subsection 1 of section 2858essentially provides that if the panel findings as to breach of duty and causation areunanimous and unfavorable to the doctor, the doctor “must promptly enter intonegotiations to pay the claim or admit liability”; if a suit is brought against the doctorunder these circumstances, “the findings of the panel are admissible as provided insection 2857.”36 If, however, either of the unanimous findings of the panel as to breachof duty or causation is unfavorable to the claimant, subsection 2 states that “theclaimant must release the claim or claims based on the findings without payment or besubject to the admissibility of those findings.”37


longer even makes sense as it’s drafted.” Audio Recording of Oral Arguments, Smith II, 2007 ME 72, 924A.2d 1051 (Han-06-356) (on file with the Clerk of the Supreme Judicial Court) [hereinafter OralArguments, Smith II]. When section 2857 was amended in 1999 after the Irish I decision, the legislatureoverlooked the need to make corresponding changes in section 2858. Section 2858, subsection 2, statesthat if the panel findings as to either breach of duty or causation are unanimous and unfavorable to theclaimant, the claimant must “release the claim or claims . . . or be subject to the admissibility of thosefindings under section 2857, subsection 1, paragraph B.” ME. REV. STAT. ANN. tit. 24, § 2858 (West2000). As this statute was first introduced in the 1985 Act, section 2857, subsection 1, paragraph Breferred to the panel findings unfavorable to the claimant. See infra text accompanying note 43. The 1999amendments moved the provision relating to unfavorable findings to paragraph C, but section 2858 wasnever amended to reflect this change. See infra note 45; see also ME. REV. STAT. ANN. tit. 24, § 2858(West 2000). The result of this legislative oversight is that the plain language of section 2858 inevitablyresults in the following incoherent interpretation of the statue: if the findings of the panel are unanimousand unfavorable to the claimant, the claimant will be subject to the admissibility of those findings that arefavorable to the claimant.

38. P.L. 1985, ch. 804, § 12 (effective Jan. 1, 1987). The Statement of Fact accompanying the originalbill reveals that these changes were intended to “[i]ncreas[e] the incentive not to proceed to trial afterscreening, thus encouraging defendants to settle in cases where negligence and causation is found and byencouraging plaintiffs not to proceed where the panel makes a finding against negligence and causation.”L.D. 2400, Statement of Fact (112th Legis. 1986) (emphasis added).

39. Irish I, 1997 ME 50, ¶ 7, 691 A.2d 664, 669; see also ME. CONST. art. I, § 20 (“In all civil suits,and in all controversies concerning property, the parties shall have a right to a trial by jury, except in caseswhere it has heretofore been otherwise practiced . . . .”).

40. Id. ¶ 1, 691 A.2d at 667.

Not all of the provisions in the 1985 Act remain unchanged or substantivelysimilar to their current statutory equivalents. Section 2857 of the 1985 Act specifiedthat screening panel findings are admissible—either against the doctor or theclaimant—“without explanation” at a subsequent trial:

If the findings of the panel are:

A. As to both questions under section 2855, unanimous and unfavorable to theperson accused of professional negligence, the findings, without explanation, shall beadmissible in any subsequent court action for professional negligence against thatperson by the claimant based on the same set of facts upon which the notice of claimwas filed; andB. As to either question under section 2855, unanimous and unfavorable to theclaimant, the findings, without explanation, shall be admissible in any subsequentcourt action for professional negligence against the person accused of professionalnegligence by the claimant based on the same set of facts upon which the notice ofclaim was filed.Under paragraphs A and B, the findings shall be admissible only against the partyagainst whom they were made.38

The claimants in Irish v. Gimbel I raised the first constitutional challenge to section2857, arguing that the mandatory admissibility of the panel findings “withoutexplanation” violated their right to a jury trial guaranteed by the Maine Constitution.39

B. Previous Constitutional Challenges to Section 2857: Irish v. Gimbel I and II

In 1989, Russell and Laurie Irish filed a medical malpractice claim against Dr.Gregory Gimbel on behalf of their minor child.40 The Irishes alleged that Dr. Gimbeldeviated from the applicable standard of care in his delivery of their child, and that


41. Id. ¶ 2, 691 A.2d at 667. 42. Id. 43. Id. ¶ 5, 691 A.2d at 668. 44. Id. ¶ 7, 691 A.2d at 669.45. The original language of section 2857, applicable at the time, was similar to the current version of

the statute, but with three significant differences. First, the statute in subsections A and B provided thatthe panel’s findings “shall be” admissible in any subsequent court action. P.L. 1985, ch. 804, § 12 (enactingME. REV. STAT. ANN. tit. 24, § 2857, effective Jan. 1, 1987). The current statute simply provides thatthese findings “are” admissible. ME. REV. STAT. ANN. tit. 24, § 2857(1)(B)-(C) (West 2000); see also L.D.1325, § 8 (119th Legis. 1999) (repealing section 2857 from the 1985 act). Second, the original statuteprovided that the findings shall be admissible in both subsection A and B “without explanation.” P.L. 1985,ch. 804, § 12(A)-(B). This language was removed in the wake of the Irish I decision. See L.D. 1325, §8 (119th Legis. 1999); see also Irish I, 1997 ME 50, ¶ 11, 691 A.2d at 670. Finally, the original statuteprovided that the findings in paragraphs A and B shall be admissible “only against the party against whomthey were made,” whereas the 1999 act (passed after the Irish I decision) eliminated this language entirely,and moved paragraphs A and B to paragraphs B and C. See P.L. 1985, ch. 804, § 12; see also L.D. 1325,§ 8 (119th Legis. 1999); P.L. 1999, ch. 523, § 4 (effective Sept. 18, 1999).

46. Irish I, 1997 ME 50, ¶ 11, 691 A.2d at 670. 47. This part of the Irish I holding identified six points that should be included in both the court’s

preliminary comments and final instructions to the jury: (1) the panel process is merely a preliminary procedural step through which malpracticeclaims proceed;(2) the panel in this case consisted of (the name and identity of the members);(3) the panel conducts a summary hearing and is not bound by the Rules of Evidence;(4) the hearing is not a substitute for a full trial and may or may not have included all of thesame evidence that is presented at the trial;(5) the jury is not bound by the finding(s) and it is the jurors’ duty to reach their ownconclusions based on all of the evidence presented to them; and(6) the panel proceedings are privileged and confidential. Consequently, the parties may notintroduce panel documents or present witnesses to testify about the panel proceedings, andthey may not comment on the panel finding(s) or proceedings except to reiterate theinformation in 1 through 6.

Id. ¶ 12, 691 A.2d at 671.

their child suffered brachial plexus palsy and audiological difficulties as a result.41 Aprelitigation screening panel was appointed, and unanimously found that Dr. Gimbeldid not deviate from the applicable standard of care.42 The Irishes then filed a noticeof claim in superior court, followed by several motions in limine challenging theconstitutionality of the screening process and seeking to either exclude the screeningpanel findings or afford them less weight than other evidence.43 After these motionswere denied and the jury returned a verdict for Dr. Gimbel, the Irishes appealed to theLaw Court, contending that the “mandatory admission of unanimous findings ‘withoutexplanation’ prevents effective impeachment of the findings and results in jurordeception, thereby hindering the jurors’ ability to properly weigh the evidentiarysignificance of the findings.”44

In assessing the constitutionality of the screening panel process, the Law Courtfound that the mandatory admission of unanimous findings “without explanation”45

withheld “information that is essential to the jury’s fact-finding role”; “[t]he totalabsence of information and the unexplained silence of plaintiffs’ counsel in the faceof the highly prejudicial findings invite unprincipled evaluation and can only result injuror confusion.”46 The court explained that a jury must be given six points of informa-tion regarding the context of the screening panel process as a whole,47 including the


48. Id. 49. Id. ¶ 13, 691 A.2d at 671. 50. Irish v. Gimbel (Irish II), 2000 ME 2, ¶ 5, 743 A.2d 736, 737.51. Id. ¶¶ 7-8, 743 A.2d at 737-38. 52. ME. REV. STAT. ANN. tit. 24, § 2857 (1)(A)(B) (West 2000); see also L.D. 1325, § 8 (119th Legis.

1999). This bill, as it was first introduced in February 1999, included a paragraph which provided for theadmissibility of unanimous panel findings against the claimant, but contained nothing related to theadmissibility of panel findings against the person accused of professional negligence. Id. The summaryaccompanying the bill made it clear that this section “prohibits the presentation to the jury of a unanimouspanel finding against the person accused of professional negligence.” Id., Summary (119th Legis. 1999).The Judiciary Committee amendment left section 2857 unchanged. Comm. Amend. A to L.D. 1325, No.S-352 (119th Legis. 1999). The legislative intent of this early draft is clear, but perhaps too conspicuouslyone-sided. This omission of any provision for the admissibility of panel findings against the doctorcontinued until the Senate submitted an amended version of the bill on June 2, 1999. See Sen. Amend. Ato Comm. Amend. A to L.D. 1325, No. S-381 (119th Legis. 1999). The Senate amendment’s new paragraphB provided for the admissibility of “the findings” against the person accused of professional negligence;

explicit instructions that the panel’s findings are not conclusive and cannot becommented on by either party.48 However, the court refused to hold that section 2857precludes the disclosure of constitutionally required information. The court found thatthe “admission of panel findings is mandated only when the panel unanimouslydetermines that a plaintiff or defendant possesses a meritless claim or defense,” andthat “[p]retrial resolution is encouraged by the specter of mandatory admission of thefindings free from attack by the opposing party.”49

The Law Court remanded the case to the superior court, and the plaintiffs appealedagain, this time asserting that the admission of unanimous panel findings violated theirright to a jury trial, “to procedural and substantive due process, to equal protection ofthe law, and resulted in a violation of constitutional separation of powers.”50 The LawCourt in Irish II refused to address the due process and equal protection arguments thathad already been litigated in Irish I, and dismissed the “one new issue” concerning theseparation of powers violation by finding that the six-point instruction “was necessarynot to explain or litigate the panel findings, but to prevent a jury from drawingimproper inferences.”51

C. Post-Irish I Amendments to Section 2857

In 1999—after Irish I was decided in March of 1997, but before the Irish IIdecision was announced in 2000—the Maine Legislature repealed section 2857 asenacted in 1985 and introduced a new statutory scheme that abandoned the “withoutexplanation” language of the previous statute:

B. If the panel findings as to both the questions under section 2855, subsection 1,paragraphs A and B are unanimous and unfavorable to the person accused ofprofessional negligence, the findings are admissible in any subsequent court actionfor professional negligence against that person by the claimant based on the same setof facts upon which the notice of claim was filed.C. If the panel findings as to any question under section 2855 are unanimous andunfavorable to the claimant, the findings are admissible in any subsequent courtaction for professional negligence against the person accused of professionalnegligence by the claimant based on the same set of facts upon which the notice ofclaim was filed. The findings are admissible only against the claimant.52


however, these amendments allowed for admissibility when the panel findings “as to any question undersection 2855” are unanimous and unfavorable to the doctor, not when the panel answers both questions ofbreach of duty and causation in favor of the claimant as is currently required. Id. The summary accom-panying the Senate amendments states that it “adds language to retain the admissibility of all unanimouspanel findings,” but provides no further explanation for the addition of paragraph B. Id., Summary (119thLegis. 1999). The Senate quickly submitted a newly amended version of paragraph B on June 4, 1999 toallow the admissibility of the panel findings only if the findings as to “both” the questions of breach of dutyand causation are unanimous and unfavorable to the person accused of professional negligence. Sen.Amend. B to Comm. Amend. A. to L.D. 1325, No. S-436 (119th Legis. 1999). The summary accompany-ing these final amendments to the 1999 act provides no guidance as to why this change was made. Id.,Summary (119th Legis. 1999).

53. Compare ME. REV. STAT. ANN. tit. 24, § 2857 (West 2000) with P.L. 1999, ch. 523, § 4. 54. Brief of Appellant, supra note 12, at 1. 55. See ME. REV. STAT. ANN. tit. 24, § 2853 (West 2000) (specifying that a person may commence an

action for professional negligence by serving a written notice of claim on the person accused or filing anotice of claim with the superior court).

56. Appendix at 9, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292).57. Osteomyelitis is defined as an “[i]nflammation of bone caused by pyogenic (pus-producing)

organisms.” ROBERT K. AUSMAN & DEAN E. SNYDER, 3 AUSMAN & SNYDER’S MEDICAL LIBRARY § 4.92(Lawyers ed. 1992).

58. Appendix at 10, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292). 59. Id. 60. Id. at 11.61. Id. 62. Id. at 13.

The current version of section 2857 and the version of the statute at issue in Smith Iand II reflect no substantive changes from the 1999 act.53

III. SMITH V. HAWTHORNE I: THE CONSTITUTIONALITY OF ASYMMETRIC ADMISSIBILITY

A. Factual Background and Procedural History

James Edward Smith fractured his left tibia and fibula after falling in August of1997, and orthopedic surgeon Dr. Catherine Hawthorne treated him for the next severalmonths after the injury.54 On October 21, 1999, James and his wife Sheryl Smith fileda sworn notice of claim under the MHSA55 against Dr. Hawthorne.56 They allegedfour deviations from the appropriate standard of care with respect to her treatment ofMr. Smith: (a) an “inadequate internal fixation of the original fracture,” (b) a prematureallowance of “weight bearing on this unstable construct,” (c) inadequate treatment ofosteomyelitis57 at the fracture site, and (d) improper use of ultrasound bone stimula-tion.58 Mr. Smith claimed that as a result of these deviations he was forced to undergoa series of unnecessary operations and was “significantly delayed” in his return to workas a truck driver.59 Mr. Smith also claimed to have experienced great pain andsuffering, a permanent impairment of his foot and ankle, and a “limitation in his abilityto work and play” as a result of these deviations.60 Sheryl Smith also alleged a loss ofconsortium as a result of Dr. Hawthorne’s negligent treatment of her husband.61

Pursuant to the MHSA, a pre-litigation screening panel was formed, discoverybegan for both parties, and a panel hearing took place on November 30, 2000.62 Thethree-member panel made a unanimous finding that the only deviation from the


63. Id. 64. Id. The screening panel answered the following three questions in its malpractice decree:

A. Whether the acts or admissions complained of, or found by the panel to exist, or asagreed by the parties, constitute a deviation from the applicable standard of care by thehealth care practitioner or health care provider charged with that care: regarding 7(c)as alleged in the Notice of Claim.

B. Whether the acts or omissions complained of proximately caused the injurycomplained of, or as found by the panel, or as agreed by the parties[.]

C. If negligence on the part of the health care practitioner or health care provider is found,whether any negligence of the part of the patient was equal to or greater than thenegligence on the part of the practitioner or provider[.]

Id. (emphasis added). The italicized portion was handwritten and followed by an asterisk. The asteriskreferred to another handwritten portion on the bottom of the decree, which stated “The panel finds nonegligence on the remaining issues.” Id.; see also ME. REV. STAT. ANN. tit. 24, § 2855(1) (A)-(C) (West2000 & Supp. 2006) (providing the statutory basis for these three questions).

65. Appendix at 13, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292). 66. Smith I, 2006 ME 19, ¶ 5, 892 A.2d at 435. Smith v. Hawthorne has been tried a total of three

times. The case was tried twice before the Law Court rendered its decision in Smith I, and was tried againon remand to the Superior Court after this decision.

67. Appendix at 8, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292). 68. Id. 69. Brief of Appellant, supra note 12, at 2.70. Appendix at 16, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292).

applicable standard of care was Dr. Hawthorne’s treatment of the wound at the fracturesite.63 After hearing evidence presented by both Mr. Smith and Dr. Hawthorne, thescreening panel was asked to answer “yes” or “no” to the three questions mandated bysection 2855(1)(A)-(C) in its final malpractice decree.64 The panel answered “yes” toquestion 1—relating to a deviation from the applicable standard of care—and “no” toquestions 2 and 3—relating to the existence of proximate causation and comparativenegligence.65

After the panel hearing, the Smiths filed suit against Dr. Hawthorne forprofessional negligence in the Maine Superior Court in Hancock County.66 Prior totrial, the Smiths filed motions in limine to (1) admit the entirety of the panel’s findingsrather than just the one finding that was favorable to Dr. Hawthorne, and (2) challengethe constitutionality of section 2857 as violative of the plaintiffs’ rights to trial by jury,equal protection, and due process.67 On September 6, 2002, Justice Jabar denied thesemotions, ordering that the constitutional challenge must fail “because there is a rationalbasis for the inconsistency” inherent in section 2857:

Very simply put, in any trial a Plaintiff must prevail on both issues, negligence andproximate cause; whereas, the Defendant need only prevail on one of those issues.Therefore, the Legislature’s requirement that the Plaintiff prevail on both issuesbefore the findings are admissible; whereas, the Defendant need only prevail on oneof the issues before the findings are admissible is rationally based on the basicrequirements of the parties in any negligence action.68

The first trial ended in a hung jury and a mistrial.69 Prior to the second trial, theSmiths once again objected to the “partial instruction and partial admission of the pre-litigation screening panel findings.”70 Justice Hjelm affirmed Justice Jabar’s order onthe first motion in limine, instructed the jury as to the screening panel process pursuant


71. Id. at 24 (Partial Transcript of Proceedings). 72. Id. at 29. 73. Id. at 28. The verdict form in the Appendix is unmarked, thus it is unclear whether the jury found

in favor of Dr. Hawthorne on the basis of the combined negligence and causation question, or on the basisof comparative negligence. Id. at 29.

74. See Brief of Appellant, supra note 12; see also U.S. CONST. amend. XIV, § 1; ME. CONST. art. I,§§ 6-A, 20.

75. Audio Recording of Oral Arguments, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292) (on filewith the Clerk of the Supreme Judicial Court) [hereinafter 1 Oral Arguments, Smith I ].

76. Id. Maine’s statutory scheme is no longer “unique in the nation” as Mr. Greif suggested. In Augustof 2005, New Hampshire enacted section 519-B:8, which is virtually identical to Maine’s screening panelprovisions. See generally N.H. REV. STAT. ANN. § 519-B:8 (West 2007).

77. 1 Oral Arguments, Smith I, supra note 75. Mr. Greif outlined the basis of his appeal as follows:What makes the courts of our nation work is the right to confront and challenge evidence,and the most useful piece of evidence I would have had to challenge that argument that therewas no infection, and that there was no breach of the standard of care, was that three peoplehad heard the same evidence . . . and had agreed with our expert that yes there was infectionand yes this infection should have been treated more promptly and more efficiently.

Id. 78. Id. Chief Justice Saufley: “In order to prevail, the plaintiff must prevail on both [negligence and

proximate cause] . . . and in order to prevail, the defendant need only rebut one . . . . Isn’t it really thelegislature just saying if you’ve carried your burden to prevail, whatever it is that got you there goes beforethe . . . jury?” Id.; see also Smith I, 2006 ME 19, ¶ 36, 892 A.2d 433, 441 (Levy, J., dissenting).

to Irish I, and allowed defense counsel to tell the jury that “[t]he panel in this caseunanimously concluded that the acts or omissions complained of by the Smiths werenot the legal cause of the injuries that he has alleged.”71 After both sides rested, thejury was given a verdict form that combined the issues of negligence and causation,asking “Was the Defendant negligent and was the Defendant’s negligence a proximatecause of the Plaintiff James Smith’s injuries?”72 The jury returned a verdict in favorof Dr. Hawthorne.73

The Smiths appealed this decision to the Law Court, claiming that, as applied inthis case, section 2857 violated their rights to a jury trial, equal protection, and dueprocess as protected by the United States and Maine Constitutions.74

B. Oral Arguments Before the Law Court

1. First Round

On January 15, 2005, attorneys for the Smiths and Dr. Hawthorne appeared beforethe Law Court in what would be the first of two rounds of oral argument in Smith I.75

Counsel for the Smiths, Attorney Gilbert Greif, argued that the Maine Legislature, byenacting section 2857, has created a procedure “unique in the nation” that “requiresthat the jury be told a half-truth.”76 He argued that—despite the fact that in a medicalcase the issue of negligence is more difficult to prove than proximate cause—he wasdenied the opportunity to explain to the jury that the screening panel found that therewas negligence.77 Chief Justice Saufley’s questions focused on the possibility ofsalvaging a constitutional interpretation of section 2857, presaging her alignment withthe Smith I dissent.78 Mr. Greif responded that the application of the statute is notbased on a shifting burden or proof, but rather represents “an attempt by the legislature


79. 1 Oral Arguments, Smith I, supra note 75. Mr. Greif asserted that even though the Smiths prevailedon the issue of comparative negligence, the statute is written so as to preclude the submission of this finding“under any circumstances.” Id.

80. Id. 81. Id. 82. Audio Recording of Oral Arguments, Smith I, 2006 ME 19, 892 A.2d 433 (Han-04-292) (on file

with the Clerk of the Supreme Judicial Court) [hereinafter 2 Oral Arguments, Smith I ]. Specifically, Mr.Greif argued that unlike the application of paragraph C that led to substantive asymmetry in this case, the“without comment” provision invalidated in Irish I did not always favor the doctor. Id.

83. Id. The following exchange illustrates what appears to be Justice Levy’s attack on the relief soughtby the Smiths, and Justice Alexander’s attempt to salvage the statute by reading “the findings” in paragraphC to mean all of the unanimous findings of the screening panel:

Justice Levy: The question is do we declare it unconstitutional, and invalidate it, or do werewrite the statute so as to make it constitutional?Mr. Greif: You declare the disparate treatment between B and C as being unconstitutional.Justice Levy: Do we have a third avenue? As Justice Alexander observed, in looking at C,it says, if the findings . . . are . . . unanimous and unfavorable to the claimant, the findingsare admissible . . . are we prevented from saying what is intended by the legislature . . . isthat when they said the findings, they meant all the findings, both the unfavorable and thefavorable findings? Do we have that flexibility anymore?Mr. Greif: It would render the prior subparagraph B . . .Chief Justice Saufley: We’d have to strike B.Justice Levy: Because B prohibits that, doesn’t it?Justice Alexander: No, you don’t have to strike B. What B says is in order for the plaintiffto get it admitted, they have to win on everything, in order for the defendant to get itadmitted, they have to win on one thing. What’s wrong with that?

Id. 84. Id. 85. Id.; see also Irish I, 1997 ME 50, ¶ 12, 691 A.2d 664, 671.

to place a thumb . . . on the scales of justice, and to tilt the proceeding irrevocably infavor of the doctor.”79

Counsel for Dr. Hawthorne, Attorney George Schelling, attempted to distinguishIrish I by focusing on the relief sought: whereas the remedy in Irish was to supplementsection 2857, the remedy in this case would be to “gut” the statute entirely.80 Mr.Schelling emphasized how panel findings have been afforded less weight after Irish I,but that the legislative intent is nevertheless clear: to give “the bottom line” to the juryas to the screening panel findings in non-meritorious cases.81

2. Second Round

On rehearing before the Law Court, Mr. Greif emphasized that the substantiveasymmetry in this case is actually worse than the constitutional violation in Irish I.82

When Justice Calkins asked how the statute should be reconstructed, Mr. Greifresponded that he would strike all of paragraph B, and apply paragraph C to bothclaimant and doctor.83 Justice Levy then asked whether it was “really within ourpurview to start cutting and pasting the statute.”84 When Mr. Greif drew a parallelbetween the prevention of “effective impeachment of the findings” in Irish I and theconstitutional challenge in this case, Chief Justice Saufley noted that the “court wrotemore into the statute” in the Irish I decision and remedied the constitutional defect withthe six-point instruction.85 Mr. Greif responded that the court did not write anythingmore into the statute in Irish I, but simply said that a trial court “in its fundamental core


86. 2 Oral Arguments, Smith I, supra note 82. 87. Id. Justice Alexander: “The law right now says the findings are admissible; your problem is not

with the law, your problem is that the judge decided to cut and paste.” Id. 88. Id.89. Id. 90. Smith I, 2006 ME 19, ¶ 25, 892 A.2d 433, 439-40; see also ME. CONST. art. I, § 20 (“In all civil

suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except incases where it has heretofore been otherwise practiced . . . .”).

function” can offer the six-point instruction to the jury.86 Justice Alexander said thatMr. Greif’s problem is with the judge’s editing of the findings, not with the plainlanguage of the statute.87

Attorney Schelling noted what he considered a significant flaw in the Brief forAppellant that the screening panel “in essence” found that the Smiths’ claim wasmeritorious because they prevailed on the issue of negligence; he argued that this is infact a non-meritorious case that “should have been weeded out according to thePomeroy Commission and according to the legislature.”88 He emphasized that thereis no constitutional problem when the court only gives the jury the finding that allowedthe doctor to prevail at the screening panel if it is properly instructed as to thedifference between legal cause and breach of the standard of care.89

3. Discussion

Both rounds of oral arguments in Smith I revealed several fracture points capableof dividing the court into a 4-3 opinion, with two justices concurring. The first fracturepoint is revealed through Justice Levy and Chief Justice Saufley’s line of questions toAttorney Greif, which inquired why the court should not defer to the legislative policydetermination that a claimant must prevail on both the issues of standard of care andcausation at the panel stage in order to get those determinations before a jury. Thesecond fracture point is revealed through Justice Alexander’s statement in the rehearingthat the Smiths’ real objection is to the lower court’s omission of certain panelfindings, rather than to the statute itself, which can be read so as to provide for theadmission of all panel findings at a subsequent trial. The third fracture point isrevealed by Justice Levy and Chief Justice Saufley’s joint focus on the sufficiency ofthe Irish I six-point instruction in contextualizing the panel findings. These threeissues raised in oral arguments prefigured the central themes of both the dissenting andconcurring opinions.

C. The Decision

The majority opinion of Justice Calkins, joined by Justices Dana, Alexander, andSilver, held that the “application of subsections 2857(1)(B) and (C) by the SuperiorCourt, which denied the plaintiff’s request to admit the panel’s findings on negligenceand comparative negligence and allowed in evidence only the panel’s findings oncausation, was unconstitutional and denied the Smiths their right to a jury trial underthe Maine Constitution.”90 Quoting Irish I, the majority reiterated that the right to ajury trial is defined by the right “to have a determination made by the jury on material


91. Smith I, 2006 ME 19, ¶ 20, 892 A.2d at 438 (citing Irish I, 1997 ME 50, ¶ 8, 691 A.2d 664, 669).92. Id. ¶ 22, 892 A.2d at 439. 93. Id. 94. Id. ¶ 25, 892 A.2d at 439-40. 95. Id. ¶ 33, 892 A.2d at 441 (Alexander, J., concurring).96. Id. ¶ 29, 892 A.2d at 440. 97. Id. ¶ 28, 892 A.2d at 440 (citing Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d 291, 297-98

(plurality opinion)). 98. Id. ¶ 35, 892 A.2d at 441.99. Id. ¶ 36, 892 A.2d at 441 (Levy, J., dissenting).

100. Id. ¶ 41, 892 A.2d 443.

questions of fact.”91 Although the majority was careful to emphasize that the “precisechallenge” to the constitutionality of section 2857 was not present in Irish I, it held thatthe asymmetrical admission of panel findings “violated the Smiths’ constitutional rightto a jury trial for the same reasons that giving the panel findings to the jury ‘withoutexplanation’ violated the Irishes’ constitutional right to a jury trial”:92

When there are findings favorable to both parties, the admission of only thosefindings favorable to one party distorts the jury’s fact-finding role. The findings infavor of Smith, like the findings in favor of Hawthorne, were highly probative andrelevant to the jury’s determinations of material questions of fact.93

The judgment in favor of Dr. Hawthorne was vacated, and the case remanded to thesuperior court for further proceedings.94

Justice Alexander, joined by Justice Dana, concurred in the judgment, but wroteseparately in order to argue that section 2857 can be “reasonably construed to requiresubmission to the jury of all unanimous findings, even when ‘the findings’ do notsupport the same party.”95 Justice Alexander stated that the court has a duty topreserve a statute’s constitutionality if it is consistent with legislative intent,96 and must“assume that the Legislature acted in accord with due process requirements.”97 JusticeAlexander concluded his concurrence with a summary of the practical consequencesof his all-or-nothing interpretation of section 2857: “if either party wishes to offer theanswers to one or more of the unanimous findings of the panel, either all should beadmitted or none should be admitted.”98

In his dissenting opinion, which was joined by Chief Justice Saufley and JusticeClifford, Justice Levy asserted that the effect of the majority opinion is to rendersection 2857 unconstitutional as written rather than as applied in this particular case,and that this constitutional analysis is “contrary to the scope and purpose of article I,section 20” of the Maine Constitution.99 Justice Levy maintained that the absence ofsimilar asymmetric admissibility statutes should not influence the court’s constitutionalanalysis, and that the majority’s rewriting of section 2857 “undermines the inducementto settle nonmeritorious medical malpractice claims that the statute was intended toachieve.”100

D. What Remains After Smith I

The majority in Smith I refused to hold that section 2857 is facially unconstitu-tional, and limited the scope of the constitutional violation to the application by thesuperior court that permitted Dr. Hawthorne to submit only the one panel finding that


101. Id. ¶ 35, 892 A.2d at 441 (Alexander, J., concurring).102. Appendix at 17, Smith II, 2007 ME 72, 924 A.2d 1051 (Han-06-356). 103. Id. 104. Id. 105. Id. at 35 (citing Smith I, 2006 ME 19, ¶ 35, 892 A.2d at 441 (Alexander, J., concurring)).

was favorable to her case. Although the majority opinion in no uncertain termsattacked the substantive asymmetry created by this application, it stopped short ofdeclaring the statute per se unconstitutional. But while the majority went to greatlengths to explain how the statute should not be construed, it neglected to inform lowercourts how it should be construed. Justice Alexander’s concurrence provided the onlypractical recommendation for the superior court on remand: “if either party wishes tooffer the answers to one or more of the unanimous findings of the panel, either allshould be admitted or none should be admitted.”101 What alternative construction ofthe statute would have been permissible under the majority’s holding? If asymmetricadmissibility violates the constitution, but the statute itself does not dictate asymmetry,then the only plausible interpretation of the statute after Smith I is the concurrence’sall-or-nothing approach, which interprets paragraph C so as to include all of the panelfindings. Given the lack of any other alternative, it should not be surprising that JusticeMead on remand adhered to the narrow grounds of Justice Alexander’s concurringopinion.

Despite the concurrence’s saving construction of section 2857, the issue that Dr.Hawthorne raised in Smith II—whether a doctor can refuse to submit all unanimousfindings when the panel unanimously found that there was either no causation or nobreach of duty—essentially blindsided the Smith I court. Neither the majority norconcurring opinions in Smith I anticipated the evidentiary or constitutional implicationsof a situation in which the doctor refuses to submit all unanimous panel findings,despite the fact that at least one of these findings was favorable to his or her case.

IV. SMITH V. HAWTHORNE II: THE CONSTITUTIONALITY OF PROCEDURAL ASYMMETRY

A. Proceedings on Remand to the Superior Court

In March of 2006—after the Law Court rendered its decision in Smith I—Dr.Hawthorne filed a motion in limine on remand to the superior court.102 In this motion,Dr. Hawthorne first requested that the jury not be advised of the panel’s finding withrespect to the claimed breach of duty, because she did not intend to introduce thepanel’s finding of proximate cause that was adverse to the Smiths.103 The motion alsorequested that the jury should be advised that the panel unanimously decided that Dr.Hawthorne was not negligent with respect to the alleged breaches that were unrelatedto the osteomyelitis at the fracture site.104 The Smiths filed a memorandum in opposi-tion to Dr. Hawthorne’s motion, reiterating the central point of Justice Alexander’sconcurrence: “if either party wishes to offer the answers to one or more of theunanimous findings of the panel, either all should be admitted or none should beadmitted.”105


106. Id. at 37-38. 107. Id. at 42. 108. Id. 109. Id. at 42-43.110. Id. at 70. 111. Brief of Appellant at 6, Smith II, 2007 ME 72, 924 A.2d 1051 (Han-06-356). Dr. Hawthorne

argued that allowing the doctor to control admissibility fulfills the legislative intent of the MHSA: If the prevailing party is not allowed to make the decision as to whether the panel findingsare to be admitted, the stated purpose of the MHSA would be frustrated as the admission of“split” findings by the panel to a jury does not expedite the resolution of medical liabilityclaims, does not provide additional helpful information to the jury and has the capacity,especially as shown in the case at bar, to both confuse the jury and allow unnecessary andundue emphasis to be placed on the findings of the panel.

Id. 112. Oral Arguments, Smith II, supra note 37. 113. Id. (“The majority as I see it said we will not enforce an interpretation of section 2857 that allows

one decision to come in but not the other, but it did not say that the constitution requires the admission ofboth. That admission issue is not of constitutional dimension; it’s an evidentiary issue.”).

114. Id. Mr. Schelling argued that “[n]o evidence is inherently admissible. Admissible evidence iswhat the legislature decrees to be admissible.” Id.

In response to these motions, Justice Mead made an advisory ruling in which heallowed all of the panel’s findings to come in; however, he gave both parties anopportunity to present their arguments at a hearing on May 8, 2006.106 After hearingthese arguments, Justice Mead affirmed his advisory ruling:

So I’m going to stand by my earlier ruling, and we’ll allow the findings, if you stillare committed that you want to do this, allow them to go in. Neither party has thepower to make it happen, but I think, in the current configuration, the defendant issaying we don’t want them. If you say they go, they go.107

Mr. Greif, “cognizant this could be the briar patch gambit,” requested that all of thefindings of the screening panel be admitted.108 Justice Mead warned Mr. Greif that thiscould be a double-edged sword, but Mr. Greif nevertheless decided to offer all of thefindings.109 After both sides rested, the jury returned a verdict of $120,000 for JamesSmith and $20,000 for Sheryl Smith plus interest and costs.110 Dr. Hawthorne appealedthe verdict to the Law Court, contending that as the prevailing party at the screeningpanel stage, she should have the ability to decide whether or not to submit thesefindings.111

B. Oral Arguments Before the Law Court

Appearing before the Law Court for the third time in this case, Attorney Schellingargued that Justice Mead erred on remand, and that the correct decision would havebeen to permit Dr. Hawthorne—as the prevailing party at the screening panel stage—tomake the decision concerning admissibility of all the unanimous panel findings.112 Mr.Schelling’s central point was that the evidentiary issue presented in this case did notimplicate any of the constitutional questions decided in Smith I, and therefore the courtshould interpret Smith I as narrowly as possible in order to preserve the statutoryscheme and legislative intent.113 He attacked the plaintiff’s argument, that no partyowns the evidence of the screening panel findings, as being “too simplistic.”114 In


115. Id. 116. Id. The following exchange with Justice Alexander illustrates the complexity associated with

determining which party prevailed when the panel’s findings are mixed:Justice Alexander: The legislature intended that a negligent doctor have veto power overwhether the finding of the doctor was negligence [sic] goes to the jury. That’s what you’resaying, correct?Mr. Schelling: No . . . .Justice Alexander: Yes it is. Mr. Schelling: We don’t have a negligent doctor here. We have a doctor who breached thestandard of care . . . .Justice Alexander: The panel found the doctor negligent.Mr Schelling: They found that she breached the standard of care. Negligence is acombination of breach of the standard of care and causation.

Id. 117. Id. 118. Id. By “liability determinations,” Chief Justice Saufley is referring to unanimous findings favorable

to the claimant as to the questions of breach of standard of care and causation.119. Id. 120. Id. (quoting ME. REV. STAT. ANN. tit. 24, § 2858 (West 2000)). 121. Id.

response to the question as to whether either party would be obligated to submitfavorable findings, Mr. Schelling responded that it should be up to the party whoprevailed at the panel stage.115 Justice Alexander attacked the notion that a doctorcould be considered to prevail in the case of mixed panel findings, and insisted thatwhat Dr. Hawthorne was seeking in this case is a “veto power” over a panel finding ofnegligence.116

Attorney Greif argued that the court should not encourage a system of proceduralasymmetry, in which the lawyer, and not the trial judge, determines the admissibilityof evidence.117 Chief Justice Saufley first asked Mr. Greif to respond to the argumentthat in order for the plaintiff to submit the findings, they would have to be findings thatpermit liability determinations.118 Mr. Greif responded that the plain language of thestatute did not invite such a reading.119 Justice Calkins and Chief Justice Saufleyrefuted this proposition by citing section 2858’s provision that the claimant “mustrelease the claim or claims . . . or be subject to the admissibility of the findings.”120

Mr. Greif responded that section 2858 “no longer even makes sense as it is drafted”because it was never amended to reflect the changes to 2857.121 Justice Calkins thensuggested that—regardless of this discrepancy—the legislative intent behind section2858 is clear:

Justice Calkins: Except that it’s still there, and there’s no constitutional claim as Iunderstand it, and it says ‘subject to.’ What else does that mean other than that thedefendant is in the driver’s seat if it gets the answer that it wants on one of those twoquestions?Mr. Greif: Well I am making a constitutional argument, simply because Smith I saysthat you cannot have a procedural asymmetry . . .Chief Justice Saufley: But you wouldn’t, you would simply have the defendantsaying: “I got one finding unanimously favorable; I elect not to offer.” And at thatpoint, nothing goes to the jury, and it is a traditional jury trial without the


122. Id. 123. Id. 124. Id. After Mr. Greif offered this interpretation of the majority’s holding in Smith I, Chief Justice

Saufley and Justice Levy responded as follows: Chief Justice Saufley: No, no.Justice Levy: The court didn’t resolve the ambiguity constitutionally, the court resolved theconstitutional problem of asymmetrical findings, but it didn’t construe the statute as youpropose. And isn’t Mr. Schelling’s point that if in fact it is ambiguous you have to look tolegislative intent? Isn’t that how this case gets decided?

Id. 125. Maine Rule of Evidence 501 states in pertinent part that “[e]xcept as otherwise provided by

Constitution or statute or by these or other rules promulgated by the Supreme Judicial Court of this stateno person has a privilege to . . . [r]efuse to disclose any matter.” ME. R. EVID. 501.

126. Oral Arguments, Smith II, supra note 37. The following exchange illustrates the court’s reactionto Mr. Greif’s constitutional challenges in Smith II:

Justice Calkins: If nothing comes in with respect to the panel, there is no constitutionalproblem, is there?Mr. Greif: My problem is that you have a general rule of privilege which is that no party hasthe right to prevent another party from offering evidence. I have a statute that says thesefindings are admissible.Chief Justice Saufley: Not if we interpret the statute to say they don’t come in under thesecircumstances, then it is simply not evidence that gets presented to the jury; the same as ifthe findings were not unanimous, it simply does not get to the jury. It is a completelydifferent constitutional question than the asymmetry looked at by the court in Smith I.

Id.127. Smith II, 2007 ME 72, ¶ 10, 924 A.2d 1051, 1053. 128. Id. ¶ 10, 924 A.2d at 1054.

complication of the panel findings. There’s nothing asymmetrical about that at all,and in fact is frequently wished for by claimants in these matters.122

When Justice Levy asked about the source of the ambiguity in paragraph C, Mr. Greifresponded that the “only way this court found to resolve that ambiguity constitutionallyis to say that the jury must be told the whole truth.”123 Justice Levy and Chief JusticeSaufley quickly dismissed this interpretation, and stated that the evidentiary issueraised here was never addressed in Smith I.124 Although Mr. Greif maintained that thecourt has to “look to the constitution first and foremost” before inquiring intolegislative intent, Justice Calkins revealed that Mr. Greif’s argument is more closelytied to Maine Rule of Evidence 501125 than to a specific constitutional provision.126

C. The Decision

In a 4-2 majority opinion authored by Justice Calkins and joined by JusticesClifford, Levy, and Chief Justice Saufley, the Law Court held that no provision of theMHSA “requires that all of the panel’s findings be presented to the jury when theunanimous panel is split between negligence and causation and the practitionerobjects.”127 The court rejected the Smiths’ argument that Smith I requires all unani-mous findings to be submitted to the jury, and limited the holding of Smith I to theconclusion that “if one finding is admitted, both must be admitted so that the jury’sfact-finding role will not be distorted.”128 In its analysis of the MHSA, the court foundthat the ‘subject to’ language in section 2858(2) gives the defendant practitioner the


129. Id. ¶ 11, 924 A.2d at 1054. 130. Id. ¶ 12, 924 A.2d at 1054-55 (quoting ME. REV. STAT. ANN. tit. 24, § 2851(1) (West 2000)).131. Id. ¶ 15, 924 A.2d at 1055 (Saufley, C.J., concurring). 132. Id. ¶ 16, 924 A.2d at 1055. 133. Id. ¶ 21, 924 A.2d at 1056. 134. Id. ¶ 22, 924 A.2d at 1056.135. Id. ¶ 22, 924 A.2d at 1057. 136. Id. ¶¶ 23, 25, 924 A.2d at 1057 (Levy, J., concurring). 137. Id. ¶¶ 26-28, 924 A.2d at 1057-58.

choice “whether to make the claimant ‘subject to’ the findings” when one of thequestions is answered favorably to the defendant.129 The court also noted that thisinterpretation of the MHSA is consistent with the rationale behind the establishmentof the prelitigation screening panel process to “identify claims of professionalnegligence which merit compensation and to encourage early resolution of those claimsprior to the commencement of a lawsuit; and . . . to encourage early withdrawal ordismissal of nonmeritorious claims.”130

In a concurring opinion joined by Justice Clifford, Chief Justice Saufley wroteseparately to express the opinion that prelitigation screening panels have “become acumbersome process with unpredictable results that costs both plaintiffs anddefendants money and time in a way that was not intended by the Legislature.”131

Chief Justice Saufley focused on the fact that “[b]y the time the parties began the trialprocess, the panel proceedings had already consumed more than a year and asignificant amount of the parties’ resources.”132 Furthermore, the “extensive litigationin this case, which has now consumed eight years of the parties’ lives,” reflects howthe Law Court’s “varying interpretations of the statute have undermined predictabilityin the statute’s application.”133 Chief Justice Saufley concluded her concurring opin-ion by suggesting that the legislature reevaluate the “current efficacy” of the MHSA’sscreening panel provisions as they have been “interpreted, amended, augmented, andimplemented since their enactment,”134 stating specifically that “it does appear that theprocess no longer reflects the original legislative intent, that it has become costly andcumbersome, and that the people of this state would benefit from a legislativeevaluation of the medical malpractice screening panel system created by the[MHSA].”135

Justice Levy wrote separately to address the dissenting justices’ contention that afinding for Dr. Hawthorne in this case is inconsistent with the court’s holding in SmithI, and to distinguish the constitutional issue before the court in that case with thequestion of “whether a plaintiff has the right to admit the panel findings into evidencein a split-findings case over the objection of the defendant” raised in Smith II.136

Justice Levy specifically challenged the dissent’s conclusion that “nowhere in the law”is there a limitation on the admission of split panel findings by citing the “subject to”language of section 2858(2), and rejected the contention that the court’s constructionof this statute raises a constitutional problem when construed in a manner consistentwith a “legitimate state end.”137

In a dissenting opinion joined by Justice Silver, Justice Alexander argued that thecourt’s conclusion that unanimous findings under section 2857(1)(c) are admissibleonly with the doctor’s consent “is found nowhere in the law” and “violates the


138. Id. ¶ 36, 924 A.2d at 1059 (Alexander, J., dissenting). 139. Id. ¶ 41, 924 A.2d at 1060.140. Id. ¶ 42, 924 A.2d at 1060-61. 141. ME. R. EVID. 501(2)(4).142. ME. REV. STAT. ANN. tit. 24, § 2858 (West 2000) (emphasis added).

principle of fundamental fairness.”138 Justice Alexander stated that “[g]iving thedefendant doctor sole power to render the panel proceedings a nullity and preventadmission of unanimous panel findings is contrary to the legislative purpose of theHealth Security Act.”139 After disagreeing with the majority’s finding that section2857(1)(c) contains language that “authorize[s] defendants to decide if split unanimousfindings shall be admitted,” Justice Alexander found that the trial court on remand afterSmith I reasonably determined that both findings were admissible, and that the “mostreasonable, plain-meaning interpretation” of section 2157(1)(c) “does not discriminateas to who can move the admission of split, unanimous findings” and “avoids anyconstitutional problem.”140

V. HOW THE LAW COURT SHOULD HAVE DECIDED SMITH V. HAWTHORNE II

In deciding Smith II, the Law Court should have extended the same approach toprotecting the jury’s right to meaningful information concerning the screening panelprocess that it applied in Smith I. By allowing the doctor to determine if split panelfindings are presented to the jury, the court introduced an unjust and unpredictableevidentiary privilege that allows the doctor—and the doctor alone—to dictate whichevidence is and is not admissible. Maine Rule of Evidence 501 states: “[e]xcept asotherwise provided by Constitution or statute or by these or other rules promulgatedby the Supreme Judicial Court of this state no person has a privilege to . . . [r]efuse todisclose any matter; or . . . prevent another . . . disclosing any matter or producing anyobject or writing.”141 A technically defective statute such as section 2858 should nothave the power to supersede this general rule of privilege, regardless of legislativeintent.

The plain language of section 2858 indicates that the legislature may haveintended to treat the admissibility of panel findings differently for the claimant anddoctor:

1. Payment of Claim; Determination of Damages. If the unanimous findings of thepanel as to section 2855, subsections 1 and 2 are in the affirmative, the personaccused of professional negligence must promptly enter into negotiations to pay theclaim or admit liability. If liability is admitted, the claim may be submitted to thepanel, upon agreement of the claimant and person accused, for determination ofdamages. If suit is brought to enforce the claim, the findings of the panel areadmissible as provided in section 2857.

2. Release of Claim Without Payment. If the unanimous findings of the panel as toeither section 2855, subsection 1 or 2, are in the negative, the claimant must releasethe claim or claims based on the findings without payment or be subject to theadmissibility of those findings under section 2857, subsection 1, paragraph B.142


143. Oral Arguments, Smith II, supra note 37.144. ME. REV. STAT. ANN. tit. 24, § 2858 (West 2000). 145. Irish II, 2000 ME 2, ¶ 6 n.1, 743 A.2d 736, 737 n.1. 146. Smith I, 2006 ME 16, ¶ 30, 892 A.2d 433, 440 (Alexander, J., concurring). Admittedly, Justice

Alexander did not reach the question of section 2857’s ambiguity without first presenting Rideout’sdeferential standard: “[b]ecause we must assume that the Legislature acted in accord with due processrequirements, if we can reasonably interpret a statute as satisfying those constitutional requirements, wemust read it in such a way, notwithstanding other possible unconstitutional interpretations of the samestatute.” Id. ¶ 28, 892 A.2d at 440 (quoting Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d 291, 297-98 (plurality opinion)). However, the well-established assumption of legislative consistency with dueprocess requirements explicated in Rideout should not necessarily dictate the constitutionality of a statutethat has so often lent itself to unconstitutional applications. If the Law Court has so frequently foundconstitutional defects in various applications of the statute, and Rideout’s deferential standard applies, thenone must assume that the legislature envisioned—but never explicated—an application of the statute that

Upon first glance, it may seem as if the legislature’s disparate treatment of the findingswith respect to the claimant and the doctor should decide the admissibility question inSmith II. The statute clearly provides that a claimant who fails to receive a favorablefinding as to breach of duty or causation shall be “subject to the admissibility of thosefindings,” whereas the findings “are admissible” if the doctor loses on both points. Butas Mr. Greif noted in his arguments to the Law Court, section 2858 “no longer evenmakes sense as it is drafted.”143 According to the plain language of section 2858, if thefindings of the panel are unanimous and unfavorable to the claimant, the claimant willbe subject to the admissibility of those findings under section 2857, subsection 1,paragraph B, which refers to the situation in which the claimant prevails on breach ofduty and causation.144 If section 2858 had been amended to reflect the 1999amendments to section 2857, one could not assume that the choice of language insubsections 1 and 2—and the correspondingly disparate treatment of the findings’admissibility—was unintentional or carelessly chosen. In light of this legislativeoversight, however, all that remains is a reading of sections 2857 and 2858 in parimateria that is patently ambiguous.

As the Law Court stated in a footnote in Irish II, “[t]he 1999 revision of section2857(1) . . . may necessitate development of new jurisprudence regarding use ofunanimous panel findings.”145 There is no clear way to determine whether thelegislature’s failure to respond to this call by overlooking section 2858 in its 1999amendments was simply a technical glitch, or a more fundamental failure to providea coherent legislative response to the constitutional challenges raised in Irish I.Furthermore, it would be an anachronism to apply the legislative intent of section2858—enacted in 1985—to the interpretation of the post-Irish I section 2857—amended in 1999. When section 2858 was originally enacted, the legislature intendedthat the panel findings under section 2857 be introduced at a subsequent trial “withoutexplanation.” After this language was omitted in the wake of the constitutionalchallenge upheld in Irish I, the legislative intent from the 1985 enactment of section2858 no longer provides any meaningful insight on the interpretation of section 2857.

As Justice Alexander explained in his concurring opinion in Smith I, “[w]hen astatute is ambiguous, we must look beyond the words of the statute to construe itsmeaning, considering the statute’s history, underlying policy, our rules of construction,and other extrinsic factors to ascertain legislative intent.”146 There is no clear evidence


is consistent with due process requirements. It is unclear how the process of inferring what particularapplication of the statute is consistent with legislative intent is any different than the process one wouldapply in interpreting an ambiguous statute.

147. L.D. 1325 (119th Legis. 1999). 148. Comm. Amend. A to L.D. 1325, No. S-352 (119th Legis. 1999).149. Sen. Amend. A to Comm. Amend. A to L.D. 1325, No. S-381 (119th Legis. 1999).150. Id. (emphasis added). 151. ME. REV. STAT. ANN. tit. 24, § 2851 (West 2000). 152. See, e.g., Sen. Amend. A to Comm. Amend. A to L.D. 1325, No. S-381 (119th Legis. 1999). The

Senate amendment’s new paragraph B provided for the admissibility of “the findings” against the personaccused of professional negligence, and the accompanying summary stated that this change “add[ed]language to retain the admissibility of all panel findings.” Id.

in the history of the MHSA that the legislature intended to provide an evidentiaryadvantage for the doctor in the event of mixed panel findings.

The legislative history of section 2857 suggests that the type of evidentiarydiscretion sought by Dr. Hawthorne in this case would produce a procedural advantagefor the doctor that the legislature never envisioned. There would have been no needfor the legislature to consistently amend, repeal, and fine-tune different versions ofsection 2857 if the doctor was considered to have the final say as to the admissibilityof the panel findings. In the amendments to the 1999 Act to Provide Fairness toVictims of Medical Malpractice,147 the Senate removed the Judiciary Committee’samendment which stated that “the findings are admissible only against the claimant,”148

and added what would become paragraph B to provide for the admissibility of panelfindings against the doctor.149 The summary which accompanied these amendmentsstated that the new version “adds language to retain the admissibility of all unanimouspanel findings.”150 There is nothing in the legislative history of section 2857 to supportthe proposition that the party who prevailed at the screening party stage would be ableto subsequently control the admissibility of the unanimous findings.

The underlying policy of the MHSA also seems incompatible with the idea thatthe doctor should dictate admissibility of mixed findings. The express purpose of thescreening panel process, as outlined in section 2851, is to “identify claims of pro-fessional negligence and to encourage early withdrawal or dismissal of nonmeritoriousclaims.”151 The legislative history of section 2857 illustrates a consistent attempt toretain the incentive for a claimant to abandon his or her claim when the screening panelhas not answered the questions of breach of duty and causation in his or her favor.152

The Law Court in Smith II should have retained the statutorily-prescribed incentive fora claimant to abandon non-meritorious claims by holding that the jury needs to hear allunanimous panel findings upon motion by either party.

Furthermore, the mandatory admission of all unanimous panel findings wouldcreate an incentive for abandoning non-meritorious claims that is far stronger than thethreat of procedural asymmetry. If it is true that a doctor is considered to prevail at thescreening panel stage when the claimant fails to meet his burden of proof as to standardof care and causation, then mandatory admission would simply convey the underlyingbasis for this no liability finding to a jury. What better incentive would there be forsuch a plaintiff to abandon his claim if “the findings” in paragraph C was interpretedto include all the findings of the screening panel, or if the legislature amended section


153. MONT. CODE ANN. § 27-6-704(2) (2005) (providing that the decision, reasoning, and basis of thepanel’s decision are inadmissible at a subsequent trial); N.M. STAT. ANN. § 41-5-20 (West 2006) (providingthat the report of the medical malpractice panel “shall not be admissible as evidence in any actionsubsequently brought in a court of law”).

154. ME. REV. STAT. ANN. tit. 24, § 2851(1) (West 2000). 155. NEB. REV. STAT. § 44-2844 (2006) (“The report or any minority report of the medical review panel

shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, butsuch report shall not be conclusive and either party shall have the right to call any member of the medicalreview panel as a witness.”); see also KAN. STAT. ANN. § 65-4904 (2006) (“The written report of thescreening panel shall be admissible in any subsequent legal proceeding, and either party may subpoena anyand all members of the panel as witnesses for examination relating to the issues at trial.”).

2857 so as to clarify that all of the panel findings—both unanimous and non-unanimous—are admissible against either party in a subsequent trial?

VI. HOW THE MAINE LEGISLATURE SHOULD AMEND SECTIONS 2857 AND 2858

There is no shortage of options facing the Maine Legislature after Smith I and II.It may decide—on the basis of the majority opinions in Smith I and II—that section2857 is not unconstitutional as written, and therefore that the screening panel processas outlined in sections 2851 through 2859 requires no amendments whatsoever.However, even the most deferential reading of these statutes cannot overlook thenonsensical reference in section 2858, subsection 2 to the pre-1999 version of section2857. At the very least, section 2858, subsection 2 needs to be amended to refer to2857, subsection 1, paragraph C instead of paragraph B. It is unlikely that this deminimis fine-tuning of the statutory language will be sufficient to remedy theunderlying constitutional and evidentiary defects that have been raised in Smith I andII, or that have yet to be addressed by the Law Court.

The Maine Legislature could choose to amend section 2857 by following thestatutory schemes of New Mexico and Montana, which provide that the findings of thescreening panel are inadmissible at a subsequent trial.153 This option, however, seemsto undermine the legislative intent explicated in section 2851 to “identify claims ofprofessional negligence which merit compensation . . . and to encourage earlywithdrawal or dismissal of nonmeritorious claims.”154 In a jurisdiction where noscreening panel findings are admissible, each malpractice claimant would begin eachtrial with a tabula rasa, completely free of any prejudicial effect that the panel findingsmight have on the jury. The most significant problem with this legislative scheme isthat it completely disarms the incentive-creating function of the screening panel. Aclaimant who has lost on the three issues of breach of duty, causation, and comparativenegligence would be free to proceed to trial under the same set of facts, and would faceno statutory disincentives for doing so.

A third option would be for the Maine Legislature to adopt the approach of thosejurisdictions that allow for the entire screening panel report to be admitted on motionby either party, regardless of who prevailed and whether or not these findings wereunanimous. Many other states with similar prelitigation screening panel statutes pro-vide that the entire screening panel report shall be admissible at a later trial. Kansasand Nebraska’s statutes specify that the panel’s report is admissible in any subsequentcourt action, provided that the report is not conclusive and that any member of thepanel can be cross-examined.155 Delaware’s statute provides that the report of the


156. DEL. CODE ANN. tit. 18, § 6811 (2007). The Delaware statute requires that the panel make one ormore of the following findings:

(1) The evidence supports the conclusion that the defendant or defendants failed tocomply with the appropriate standard of care;

(2) The evidence does not support the conclusion that the defendant or defendants failedto meet the applicable standard of care;

(3) There is a material issue of fact, not requiring expert opinion, bearing on liability forconsideration by the Court or jury, which issue of fact shall be identified in theopinion; or

(4) The conduct complained of was or was not a factor in the resultant damages, and if so,whether the plaintiff suffered:a. Any disability and the extent and duration of the disability; andb. Any permanent impairment and the percentage of the impairment.

Id. 157. MASS. GEN. LAWS ANN. ch. 231, § 60B (West 2000 & Supp. 2007).

screening panel is admissible as prima facie evidence in a subsequent trial, althoughthe panel is only charged with determining whether there was a breach in the standardof care and not causation.156 Massachusetts law provides for a mandatory submissionof claims to a medical malpractice tribunal and states that “the decision of the tribunalshall be admissible as evidence at a trial,” regardless of the unanimity of the findingsor their favorability to either party.157

In the case of a doctor who has unanimously prevailed on either the issue ofbreach of duty or causation, the admission of the entire screening panel report shouldnot have any effect on the legislative intent to create incentives for abandoning non-meritorious claims. After Smith I, a doctor is not constitutionally permitted to submitonly that question favorable to his or her case; what difference, then, would theadmission of the entire report have in a case such as Dr. Hawthorne’s, in which oneunanimous finding was favorable to her case, and the other was unfavorable?Amending section 2857 to require that the entire screening panel report be admissiblewould simply extend the scope of admissibility to include non-unanimous findings,which are not completely devoid of an incentive-creating function.

Section 2857 currently rests on the flawed assumption that disincentives fordoctors and claimants need to be generated by manipulating the rules of admissibilityso as to favor one party over the other at a subsequent trial. As Smith I revealed,however, at least one application of this admissibility disincentive is constitutionallydefective. And as Smith II reveals, the evidentiary question of which party shouldcontrol the admissibility of mixed unanimous panel findings is not addressed in section2857, and can only be answered by attempting to infer legislative intent from aninaccurately drafted section 2858. But manipulating the admissibility of panel findingsis not the only way to generate incentives for settlement or abandonment of non-meritorious claims. An equally powerful incentive could be created by requiring theparty who unanimously ‘lost’ at the screening panel to pay the other’s reasonableexpert and attorneys’ fees at a subsequent trial. Section 2858 could be amended toread:

1. PAYMENT OF CLAIM; DETERMINATION OF DAMAGES. If the unanimousfindings of the panel as to section 2855, subsections 1 and 2 are in the affirmative, theperson accused of professional negligence must promptly enter into negotiations to


158. See generally ME. REV. STAT. ANN. tit. 13-C, § 1332 (West 2005) (allowing the court to “assessthe fees and expenses of counsel and experts for the respective parties, in amounts the court finds equitable”against either a corporation or shareholder in a stock appraisal proceeding); 42 U.S.C. § 1988 (2000)(allowing the court, “in its discretion” and under certain limited circumstances, to allow the prevailing partyother than the United States reasonable attorney’s costs and expert fees); FED. R. CIV. P. 68 (“If thejudgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costsincurred after the making of the offer.”). The allocation of fees outlined in this proposed amendment is akinto the British Rule, which numerous scholars have championed as a means of encouraging settlements. See,e.g., Jonathan Fischbach & Michael Fischbach, Rethinking Optimality in Tort-Litigation: The Promise ofReverse Cost-Shifting, 19 BYU J. PUB. L. 317, 321 (2005) (finding that an ideal fee-shifting rule “woulddiscourage plaintiffs from carrying weak claims to a jury” and “would reduce the potential for irrationaljury verdicts or excessive awards by imposing substantial financial risk on parties who decline to settle theircases before judgment”); Bradley L. Smith, Note, Three Attorney Fee-Shifting Rules and ContingencyFees: Their Impact on Settlement Incentives, 90 MICH. L. REV. 2154, 2186 (1992) (finding that the costof cases tried under the British Rule tend to be more expensive, and that these higher costs “will usuallyfoster settlement despite the inhibitory impact of legal costs ‘discounted’ due to the probability of feerecovery if successful”).

pay the claim or admit liability. If liability is admitted, the claim may be submittedto the panel, upon agreement of the claimant and person accused, for determinationof damages. If suit is brought to enforce the claim and the court finds in favor of theclaimant at a subsequent trial, the findings of the panel are admissible as provided insection 2857. court shall assess fees and expenses of counsel and experts for therespective parties, in amounts the court finds equitable, against the person accused ofprofessional negligence. If suit is brought to enforce the claim, and the court findsin favor of the person accused of professional negligence at a subsequent trial, feesand expenses of counsel and experts shall be assessed against the respective parties.

2. RELEASE OF CLAIM WITHOUT PAYMENT. If the unanimous findings of thepanel as to either section 2855, subsection 1 or 2, are in the negative, the claimantmust release the claim or claims based on the findings without payment or be subjectto the admissibility of those findings under section 2857, subsection 1, paragraph Bbring suit to enforce the claim. If suit is brought to enforce the claim and the courtfinds in favor of the person accused of professional negligence at a subsequent trial,the court shall assess fees and expenses of counsel and experts for the respectiveparties, in amounts the court finds equitable, against the claimant. If suit is broughtto enforce the claim, and the court finds in favor of the claimant at a subsequent trial,fees and expenses of counsel and experts shall be assessed against the respectiveparties. 158

These amendments would not only provide an independent incentive for settlementsand dismissals, but would also supplement the incentives created by the mandatoryadmission of the entire screening panel report as mandated by the newly-amendedsubsection 1 of section 2857:

1. PROCEEDINGS BEFORE PANEL CONFIDENTIAL. Except as provided in thissection and section 2858, all proceedings before the panel, including its finaldeterminations, must be treated in every respect as private and confidential by thepanel and the parties to the claim.

A. The findings and other writings of the panel other than the malpractice decreemandated by paragraph B of this subsection and any evidence and statements made


by a party or a party's representative during a panel hearing are not admissible andmay not otherwise be submitted or used for any purpose in a subsequent court actionand may not be publicly disclosed, except that:

1. Any testimony or writings made under oath may be used in subsequent proceedingsfor purposes of impeachment; and

2. The party who made the statement or presented the evidence may agree to thesubmission, use or disclosure of that statement or evidence.

B. If the panel findings as to both the questions under section 2855, subsection 1,paragraphs A and B are unanimous and unfavorable to the person accused ofprofessional negligence, the findings are admissible in any subsequent court actionfor professional negligence against that person by the claimant based on the same setof facts upon which the notice of claim was filed.

B. The panel shall summarize its findings as to the questions under section 2855,subsection 1, paragraphs A, B, and C in a malpractice decree, which shall beadmissible upon motion by either party in any subsequent court action forprofessional negligence based on the same set of facts upon which the notice of claimwas filed. The malpractice decree shall be admissible in its entirety without regardto the unanimity of the panel’s findings as to any question or questions under section2855, subsection 1, paragraphs A, B, and C. The malpractice decree shall not beconclusive evidence of liability or the lack thereof.

C. If the panel findings as to any question under section 2855 are unanimous andunfavorable to the claimant, the findings are admissible in any subsequent courtaction for professional negligence against the person accused of professionalnegligence by the claimant based on the same set of facts upon which the notice ofclaim was filed.

C. No panel member may be asked or compelled to testify at a subsequent courtaction concerning the deliberations, discussions, findings, or expert testimony oropinions expressed during the panel hearing.

The confidentiality provisions of this section do not apply if the findings wereinfluenced by fraud.

While this newly amended version of section 2857 undoubtedly limits the scopeof the confidentiality provisions currently in force, it does not entirely invalidate them.The deliberations of the panel will still be kept confidential; it is only the panel’smalpractice decree that will become admissible at a later trial. Neither party will beallowed to call any panel member to the stand, although this statute would leave thedoor open for the calling of expert witnesses who may have testified before the panel.The confidentiality provisions of section 2857 have already been substantiallyweakened by the court’s holding in Smith I; no longer can all the findings of the panelbe kept confidential except for the one finding favorable to the doctor. In light of theconstitutional defect of this interpretation revealed by Smith I, what more would thisamended version of section 2857 do other than expand the scope of admissibility at asubsequent trial to include non-unanimous findings?


159. Note that section 2857 as currently drafted provides no mechanism for the admissibility of aunanimous finding in favor of the claimant in this particular case, or when either the question of breach ofduty or causation is answered in favor of the doctor. See ME. REV. STAT. ANN. tit. 24, § 2857 (West 2000).

160. Pomeroy Report, supra note 17, at 24.

As it is currently drafted, section 2857 relies on the misconception that onlyunanimous panel findings are effective in creating disincentives for the pursuit of non-meritorious claims. Although neither Smith I nor Smith II addressed the admissibilityof non-unanimous findings, the Law Court will inevitably face a variety of appealsfrom superior court decisions that refused to allow non-unanimous findings in favorof either party before the jury. The iterations of potential constitutional challenges tothese admissions decisions are almost overwhelming in scope. If, for example, a panelfound 2 to 1 in favor of the claimant on breach of duty and causation, and 3 to 0 infavor of the doctor on comparative negligence, the plain language of section 2857seems to suggest that none of these findings will be admissible.159 If a doctor prevails2-1 on breach of duty, causation, and comparative negligence, what current statutorymechanism exists for getting those findings before a jury? The disincentives that aregenerated in these cases are inconsistent with the legislative intent to convey thepanel’s underlying findings to the jury so as to promote settlements and dismissalsprior to trial.

Permitting the admissibility of the entire malpractice decree would allow thefindings to speak for themselves and generate their own incentives for abandoning anon-meritorious claim or defense. The legislature could simultaneously distance itselffrom the constitutional and evidentiary challenges raised in Smith I and II, and createan evidentiary approach to the admissibility of panel findings upon which the courtsand both sides of the Maine bar could consistently rely.

VII. CONCLUSION

In the midst of a nationwide malpractice crisis in the 1970s, the PomeroyCommission recommended that voluntary professional malpractice advisory panels beestablished in order to “(1) prevent, where possible, the filing of court actions againstphysicians for professional malpractice in situations where the facts do not allow atleast a reasonable inference of malpractice[, and] (2) to make possible the fair andequitable disposition of such claims against physicians as are, or reasonably may be,well founded.”160 The legislature embraced these underlying purposes, and the efficacyof this voluntary system in mitigating the effects of Maine’s malpractice crisiseventually led to the enactment of a mandatory prelitigation screening panel process.

It soon became clear that in adopting this mandatory screening panel process, thelegislature may not have anticipated section 2857’s vulnerability to variousconstitutional challenges. In Irish I, the Law Court held that section 2857’s “withoutcomment” provision violated the claimant’s right to a jury trial by depriving the fact-finder of information necessary to render a fair verdict. The legislature responded byremoving the “without comment” provisions, but this amendment was insufficient toforestall further constitutional challenges. In Smith I, a malpractice claimantchallenged an application of section 2857 which allowed the doctor to submit only theone unanimous finding favorable to his or her case when there was also a unanimous


unfavorable finding. The Law Court agreed that the application of the statute in thiscase denied the Smiths their right to a jury trial under the Maine Constitution, butrefused to hold that the statute is per se unconstitutional.

In Smith II, Dr. Hawthorne asserted that the party who prevailed at the panel stagewith respect to his or her particular burden of proof should be able to control theadmissibility of the panel’s findings at a subsequent trial. By inferring legislativeintent from the “subject to” language in section 2858(2), a majority of the Law Courtheld that the doctor should control the admissibility of mixed panel findings when onequestion has been answered favorably to the defendant. However, the questionremains whether section 2858, which was never amended to reflect the legislature’s1999 changes to section 2857, should be dispositive of any question relating tolegislative intent when so much of this intent was declared constitutionally deficientin Irish I. Although the questions raised in Smith II are not of the same constitutionaldimension as in Smith I, the Law Court should nevertheless have extended the sameprotections of the jury’s right to meaningful information that it applied in Smith I.

In order to remedy the current defects of section 2857, the Maine Legislature mustfirst abandon the misconception that non-unanimous panel findings would beineffective in generating incentives for settlement or the abandonment of non-meritorious claims. It must then consider the possibility of adding supplementalincentives in the form of an award of reasonable expert and attorneys’ fees, assessedagainst the party who unanimously lost at the screening panel and then loses again ata subsequent trial. The threat of these fees in conjunction with the admissibility of theentire malpractice decree should be more than sufficient in deterring the pursuit of aclaim or a defense that the panel unanimously finds to have no merit. In the situationwhere the panel’s finding was not unanimous on all questions, it can be argued that thisis not really a conclusive statement by the panel one way or the other, and that one ofthe parties has at least raised a question that merits litigation before a court ofcompetent jurisdiction. A panel finding of 2 to 1 as to any question under section 2858would simply be a statement that more fact-finding is necessary to make a conclusivedetermination, which is not inconsistent with the overarching purpose of the screeningpanel process to promote pretrial settlements and dismissals.

The Law Court may have to this point been able to salvage a narrow constitutionalapplication of sections 2857 and 2858, but it is unlikely that the current version ofthese statutes will be able to withstand any further constitutional challenges. Thelegislature can help to streamline medical malpractice litigation in Maine by codifyinga consistent and predictable evidentiary rule that would allow for the admissibility ofthe entire screening panel malpractice decree and the assessment of reasonable expertand attorneys’ fees against the party who unanimously loses at the screening panelstage, refuses to abandon his claim, and then loses at a subsequent trial. Minor, non-intrusive amendments may provide temporary relief, but until the legislaturereappraises the basic assumptions underlying sections 2857 and 2858, theconstitutional infirmity of admissibility-oriented disincentives will remain a problemlong after Smith I and II have been forgotten.

Documents

Unconstitutional Asymmetry or a Rational Basis for